Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.

“Texas can’t use its current voter maps in the upcoming congressional midterm elections after a panel of federal judges ruled districts approved by state Republican lawmakers illegally discriminate against Hispanic and black voters.

The three-judge panel in San Antonio gave the state three days to say if and when the Texas Legislature will fix the congressional map, which the judges concluded still carried the discriminatory taint of districts lawmakers originally drew in 2011 with the intent to squelch rising Latino voting strength.

If Texas doesn’t intend to correct biased districts, the court will hold a hearing to solicit advice before redrawing the map on its own, the panel said Tuesday.”

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Read the complete story at the link.

Another setback for the White Nationalist agenda of Jeff Sessions and Texas AG Ken Paxton.

“In a remarkable 10-to-3 decision, a federal appeals court on Thursday affirmed the freeze on the second iteration of President Donald Trump’s executive order on immigration from six majority Muslim countries. The court said that national security “is not the true reason” for the order, despite Trump’s insistence to the contrary. It’s extraordinary for a federal court to tell the president directly that he’s lying; I certainly can’t think of any other examples in my lifetime.

The decision and the breakdown of the judges voting against the ban — which includes Republican appointees — presages defeat for the executive order in the U.S. Supreme Court, should the Trump administration decide to seek review there. Faced with this degree of repudiation from the federal judiciary, Trump would be well advised not to go to the Supreme Court at all.

The decision for the 4th Circuit Court of Appeals was written by Chief Judge Roger Gregory, who has the distinction of having been appointed to the court first by Bill Clinton, in a recess appointment that would have expired, and then by George W. Bush — a reminder of bipartisanship in the judicial nomination process that seems almost inconceivable today.

Gregory’s opinion had three basic parts, of which the middle one was the most important.

First, Gregory found that the plaintiffs in the case had standing to challenge the executive order as a violation of the First Amendment’s establishment clause. He pointed out that under the “endorsement test” first offered by Justice Sandra Day O’Connor, the establishment clause is violated when the government sends a message to some people that they are insiders, favored members of the political community, or a message to others that they are outsiders, disfavored as citizens.

In O’Connor’s analysis, feelings count. As the 4th Circuit put it in the passage quoted by Gregory, “feelings of marginalization and exclusion are cognizable forms of injury” under the endorsement test. Thus, Muslim plaintiffs who alleged that they experienced a sense of exclusion and harm have the constitutional right to bring a lawsuit. 1

Although the 4th Circuit dissenters objected plausibly that this reliance on emotional experience would allow anyone “who develops negative feelings” to bring an establishment clause case, their objection isn’t really to Gregory’s reasoning, but to the endorsement test itself. And that’s part of constitutional doctrine.

That led Gregory to the heart of his opinion — and the condemnation of Trump as a liar. The strongest legal argument available to the Trump administration was based on a 1972 Supreme Court case called Kleindienst v. Mandel.

In the Mandel case, immigration authorities denied a visa to a Belgian Marxist who had been invited to give lectures in the U.S. The professors who invited him argued that his exclusion violated the freedom of speech.

The Supreme Court denied the claim, stating that when the executive branch excludes a noncitizen from the country “on the basis of a facially legitimate and bona fide reason,” the courts would not “look behind the exercise of that discretion.” That holding looked pretty good for the Trump executive order, which on its face asserts a national security interest in denying visas to people from the six majority Muslim countries.

Here’s where the opinion got personal. Gregory acknowledged that the executive order was “facially legitimate.” But, he said, “bona fide” literally means “in good faith.”

And here, he reasoned, the plaintiffs had provided “ample evidence that national security is not the true reason” for the order. That evidence, the court said, came mostly from Trump himself, in the form of his “numerous campaign statements expressing animus towards the Islamic faith.”

This was really the punchline of the opinion: Trump’s own statements show that he lied when he said the purpose of the executive order was national security. Once that conclusion was on the table, Gregory easily went on to show that such animus violated the establishment clause by sending a message to Muslims that they are outsiders in the political community.

One other George W. Bush nominee, Judge Allyson Duncan, joined the opinion. The three dissents came from Judge Paul Niemeyer, appointed by George H.W. Bush, and two court’s two other George W. Bush nominees. Thus, the breakdown was mostly partisan.

As a result, it’s plausible that Trump might get a few votes for the executive order at the Supreme Court. But he isn’t going to win. Justice Anthony Kennedy will be moved by the argument that the executive order was adopted in bad faith. And even conservative Justice Samuel Alito is likely to be unsympathetic, given his strong record as a defender of religious liberty.
Trump’s lawyers should be telling him right now that it would be a mistake for him to seek Supreme Court review. Not only is he likely to lose, he is likely to lose in a way that undermines his legitimacy and credibility. But it’s doubtful whether he will listen. If Trump had been listening to his lawyers, he wouldn’t be in the situation he’s in now, where the judiciary is telling him to his face that he has bad faith.”

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I’m not even sure the Supremes will take this case.

First, it’s in an odd procedural posture of a preliminary injunction. No trial has ever been held.

Noah Feldman, columnist and Harvard Law Professor, writes in BloombergView:

“If the incredible shrinking Supreme Court sounds unimaginable, that should count as a reason to expect the Senate Republicans to break the filibuster. But an eight-justice court seemed pretty unimaginable when Justice Scalia died last February — and it’s become a reality, at least for the moment.

Even if the filibuster is overcome, there already seems to have been long-term change in the way Supreme Court seats are filled. If the Democrats had a majority in the Senate today, it seems entirely possible that they would be saying they’d refuse to vote on Trump’s nominee for the next four years. Some version of winner-take-all confirmation politics may already be with us.”

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After reading Professor Feldman’s article, seems to me that a very plausible scenario is that if the Democrats try to block a Trump nominee, the Republicans will retaliate by extending the “nuclear option ” to Supreme Court appointments, thereby allowing Trump nominees to get through the confirmation process with a “bare majority” vote of 51. The Republicans now have 52 votes in the Senate.

Thereafter, it’s hard to imagine circumstances under which a President whose party is in the Senate minority will be able to fill any Supreme Court vacancies. Additionally, the minority party (of course, Democrats at present) will lack “leverage” to force a President to appoint so-called “mainstream” candidates. As long as all, or almost all, of the Senators in the majority party are willing to support the candidate, he or she will be confirmed, no matter how “extreme ” his or her views might be considered by the minority.

This would 1) make the Supreme Court an even bigger issue in Presidential and Senatorial elections than it is now (and it’s big right now); and 2) lead to a more polarized Supreme Court, since the only limit on a President would be his or her ability to “sell” the nominee to his own party.

Finally, I don’t see any reason why this development would stop at the Supreme Court. Why wouldn’t the Senate majority party block a President from the opposing party from appointing Federal Circuit Court and even U.S. District Judges, hoping to be able to “run the table” and fill huge numbers of vacancies if they can win back the Presidency?